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U.S. Coastline Inc/Michael Murphy - Order, April 2, 1993

Order April 2, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Summary Abatement Order issued pursuant to Environmental Conservation Law Section 71-0301 to:

U.S. COASTLINE, INC.
MICHAEL MURPHY
ROBERT W. MURPHY
BROOKLYN NAVY YARD DEVELOPMENT CORPORATION
AND THE CITY OF NEW YORK

RESPONDENTS

ORDER

DEC FILE No.
R2-0213-92-07

WHEREAS:

  1. Pursuant to a Summary Abatement Order dated July 16, 1992, an administrative enforcement hearing was held before Susan J. DuBois, Administrative Law Judge ("ALJ") at the Department's Region 2 Office located in Long Island City, New York. The Department Staff appeared by Steven Goverman, Esq. The Respondents U.S. Coastline, Inc., Robert W. Murphy and Michael Murphy appeared by Robert C. Mirone, Esq., of the firm of Chalos & Brown, and later appeared pro se. The Respondent Brooklyn Navy Yard Development Corp. appeared by Paul D. Casowitz, Esq., of the firm of Sive, Paget & Riesel. The Respondent City of New York, appeared by Steven Russo, Esq. of the New York City Law Department.
  2. The Respondents failed to demonstrate that the circumstances and conditions cited in the Summary Abatement Order of July 16, 1992 do not constitute an imminent danger to the health and welfare of the people of the State and do not result in or are not likely to result in irreversible and irreparable damage to the natural resources of the State.
  3. I accept the ALJ's conclusion that when the Summary Abatement Order was issued, it would not have been prejudicial to the interests of the State to delay action until a hearing could have been held. However, this conclusion does not warrant or require the revocation of the Summary Abatement Order. The Respondents have now had a full opportunity to be heard on the merits and therefore any action at this point need not be premised on a finding that when the Summary Abatement Order was issued, it would have been prejudicial to the State to delay action until after a hearing was held.
  4. Given the above conclusion, however, it is appropriate to modify the Summary Abatement Order to give the Respondents a reasonable time from the issuance of this Order to comply with its remedial provisions. This modification does not excuse any non-compliance with the terms of the July 16 Order.
  5. I concur with ALJ DuBois that the terms of the Summary Abatement Order may only be modified by the Commissioner unless the authority to do so has been delegated. Since there is no delegation of authority in this case, the stipulation between the Department Staff and the City of New York and the Brooklyn Navy Yard Development Corporation is treated as a proposed modification. Upon review of the stipulation, I find it to be acceptable.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. The Summary Abatement Order dated July 16, 1992 is continued in its entirety except as noted below.
  2. The December 1, 1992 Stipulation between the Department Staff and the City of New York and the Brooklyn Navy Yard Development Corporation is accepted as a modification to the above mentioned order. Where in conflict, the terms of the Stipulation shall govern. The stipulation shall only govern the rights and obligations of the signatories to it.
  3. The time periods for all work required by the July 16, 1992 Summary Abatement Order shall commence upon the service of this Order upon Respondents. With respect to Respondents City of New York and Brooklyn Navy Yard Development Corporation, the date and time periods set forth in the Stipulation govern.
  4. The provisions, terms and conditions of the Order shall bind Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for on behalf of Respondent.
  5. All communications between Respondents and the Department concerning this Order shall be made to the Department's Region 2 Director, New York State Department of Environmental Conservation, One Hunter's Point Plaza, 47-40 21st Street, Long Island City, New York, 11101-5407.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: Albany, New York
April 2, 1993

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of the -

SUMMARY ABATEMENT ORDER

Issued with respect to the Causing, Engaging In or Maintaining a Condition or Activity Which
Presents an Imminent Danger to the Health or Welfare of the People of the State of New York
or Which Is Likely to Result in Irreversible or Irreparable Damage to Natural Resources of
the State in Violation of Section 71-0301 of the Environmental Conservation Law

- by -

U.S. COASTLINE, INC.
MICHAEL MURPHY
ROBERT W. MURPHY
BROOKLYN NAVY YARD DEVELOPMENT CORPORATION
and
THE CITY OF NEW YORK,

Respondents

DEC File No. R2-0213-92-07

HEARING REPORT

- by -

____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Proceedings

On July 16, 1992, the Commissioner of the New York State Department of Environmental Conservation (the "Department") signed and subsequently had served upon the Respondents a Summary Abatement Order regarding the collapse of Pier G at the Brooklyn Navy Yard and the deposition of contaminated soil into Upper New York Bay. The provisions governing issuance of Summary Abatement Orders are found at Environmental Conservation Law ("ECL") Section 71-0301 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 620.

The Respondents in this matter are: U.S. Coastline, Inc., Pier G - Brooklyn Navy Yard, Flushing Avenue and Cumberland Street, Brooklyn, New York 11205 and P.O. Box 2652, Westfield, New Jersey 07091; Robert W. Murphy and Michael Murphy, the Chairman and President, respectively, of U.S. Coastline, Inc.; Brooklyn Navy Yard Development Corporation ("BNYDC"), Flushing Avenue and Cumberland Street, Brooklyn, New York 11205; and City of New York (the "City"), 2 Lafayette Street, New York, New York 11107.

A copy of the Summary Abatement Order (the "Order"), minus its supporting affidavits, is attached as Appendix A of this Hearing Report. The Summary Abatement Order found that the pier had collapsed on or about June 11, 1992, causing approximately 10,000 to 15,000 tons of petrochemically contaminated soil, which had been stored on the pier, to be deposited in and adjacent to Upper New York Bay. The Order found that the contaminated soil has an irreparable and irremediable adverse effect on the quality of the waters of the Bay and on the marine life inhabiting these waters and that the soil and remnants of the pier constitute an obstruction of the navigable waters of the State. The Order further found that it would be prejudicial to the interests of the people of the State and the natural resources thereof to delay action until an opportunity for hearing can be provided and until completion of an investigation of violations of ECL Articles 15 and 27.

The Order scheduled a hearing for August 4, 1992 at the Department's Region 2 Office in Long Island City, New York. The hearing was convened on that date before Susan J. DuBois, Administrative Law Judge. The hearing was on the Summary Abatement Order only and was not consolidated with any enforcement hearing. No party requested such a consolidation. All of the parties were represented at the hearing on that date. At the request of the Department Staff, the hearing was adjourned to August 18, 1992 to allow for additional discussion of remedial work. The Department Staff stated that the City of New York and the Brooklyn Navy Yard Development Corporation had requested the adjournment. No party objected to the adjournment.

On August 14, 1992, the hearing was adjourned to August 27, 1992 as agreed by the parties. On August 24, 1992, the Department Staff requested an additional adjournment and stated that all of the parties had agreed to the adjournment. The hearing was adjourned to September 15, 1992. On September 11, 1992, the Department Staff requested an additional adjournment to allow for further discussion. The hearing was adjourned to October 1, 1992. Following an additional similar request the hearing was adjourned to October 5, 1992.

The hearing reconvened on October 5, 1992, with all parties represented. At the hearing, the Department Staff stated that the City of New York and the Brooklyn Navy Yard Development Corporation had submitted a draft plan for the removal of the material and that the Department Staff was reviewing the plan. The Department Staff further stated that they had received a letter from New York City stating that work would proceed under the plan and that the parties would be attempting to resolve the matter by means of a stipulation. All of the parties agreed to an adjournment to November 18, 1992.

On November 16, 1992, I received a letter from Robert C. Mirone, Esq., stating that he was withdrawing as attorney for U.S. Coastline, Inc., Michael Murphy and Robert W. Murphy. Mr. Mirone also requested an adjournment so that his former clients would have time to retain other counsel. The hearing was adjourned, over the objection of the Department Staff, to December 1, 1992.

On December 1, 1992, the hearing reconvened. The Department Staff, Michael Murphy and Robert W. Murphy appeared at the hearing. U.S. Coastline, Inc. was represented by Robert Murphy and Michael Murphy, who stated that they and U.S. Coastline, Inc. had been unable to afford to retain other counsel. Neither the City of New York nor the Brooklyn Navy Yard Development Corporation appeared. The Department Staff submitted a stipulation among the Department Staff, the City of New York and the BNYDC with an original signature on behalf of the Department and two pages which had been transmitted by telecopier that morning and which contained signatures on behalf of the City and BNYDC.

On December 1, 1992, Robert Murphy, Michael Murphy and U.S. Coastline, Inc. presented arguments regarding whether the conditions required for issuance of a summary abatement order existed, but called no witnesses. The Department Staff called two witnesses: Leslie Adler and James Gillmore, both of the Department's Bureau of Marine Habitat Protection.

The record of the hearing remained open until December 8, 1992 for receipt of a letter from the City and/or BNYDC which was mentioned in the stipulation as part of Exhibit "C" of the stipulation but which was not attached with that document. On December 9, 1992, I received a letter from Steven Goverman, Esq., Assistant Regional Attorney, Region 2. This letter transmitted a December 8, 1992 letter from John B. Taylor, Jr. of Blasland & Bouck Engineers to Ms. Adler, which Mr. Goverman stated had been identified by the City and BNYDC as the letter to be included in Exhibit C. On December 10, 1992, I received a December 4, 1992 letter from Steven Russo, Assistant Corporation Counsel, City of New York, which transmitted to me a copy of a November 16, 1992 letter from Mr. Taylor to Patricia Miller of the New York City Economic Development Corporation, which Mr. Russo stated was the response which should included as part of Exhibit C. The December 8 letter and the November 16, letter cover similar points but are not the same.

Since these letters may not be relevant to the outcome of the hearing, it may not be necessary to resolve which is the letter which is referred to in the stipulation, nor to extend the date of the close of the record.

Official Notice

Official notice is taken of the Summary Abatement Order issued in this matter on July 16, 1992 and of the December 1, 1992 stipulation among the Department, the City and the BNYDC. (Attached as Appendix B.)

Findings of Fact

  1. Pier G at the Brooklyn Navy Yard was in use as a solid waste transfer facility. This facility was operated by Respondents U.S. Coastline, Inc., Robert W. Murphy and Michael Murphy. The City of New York is the owner of the pier. The Brooklyn Navy Yard Development Corporation leases the pier from the City and subleases it to U.S. Coastline. On or about June 11, 1992, Pier G collapsed, causing debris from the pier and approximately 10,000 to 16,000 tons of petrochemically contaminated soil stored at the facility to be deposited in and adjacent to the East River (also referred to in the Order as Upper New York Bay).
  2. On June 12, 1992 at the location of the collapsed pier, there was a long pile of soil extending out into the waterway. This soil had the appearance of a spit and its surface was at least partially above the water level. There was also a steep-sided pile of soil on the landward, standing portion of the pier.
  3. On June 12, 1992, the water currents acting on the soil were producing a sediment plume in the waterway. There was a petroleum odor at the end of the intact portion of the pier and a petroleum sheen on the water directly adjacent to the soil. A boom was being deployed around the site, but the Department employee who observed the boom was unable to ascertain the depth to which this barrier extended in the water.
  4. The waste soil buried bottom dwelling organisms and can be expected to have a variety of adverse effects on the marine organisms inhabiting the area due to re-suspension of silt into the water, consumption of oxygen from the water, and introduction of contaminants from the contaminated soil. Although the Department did not have any information specifically regarding what marine organisms existed under Pier G prior to its collapse, the East River shoreline area in general provides habitat for invertebrates including blue crabs and for resident and migratory fish. There is nothing in the record to indicate that the Pier G area differed from the surrounding area.
  5. On July 16, 1992, the Department issued a Summary Abatement Order to U.S. Coastline, Inc., Michael Murphy, Robert W. Murphy, the City of New York, and the Brooklyn Navy Yard Development Corporation (the "Respondents"). The actions which the Order directed the Respondents to carry out are as set forth in the Order itself (see Appendix A of this Hearing Report). In summary, however, the Order directed the Respondents to: immediately deploy a containment boom and silt curtain extending to the bottom of the waterway, to the extent that this was not already in place; within five days of the Order, provide a plan for removing the solid waste and provide depth readings; within 30 days of the Order, remove all solid waste from the site to a permitted solid waste management facility; maintain a silt curtain and containment boom until at least 24 hours after completion of the waste removal; and within 5 days of completion of the waste removal, submit depth readings of the area to the Department.
  6. On December 1, 1992, the Department Staff, the City and the BNYDC signed a stipulation regarding this matter. The stipulation stated that the City and the BNYDC had agreed to perform the removal, dewatering and disposal of the soil in accordance with a workplan dated October 30, 1992. The stipulation also contained provisions regarding future legal action and costs of the remedial work.
  7. As of December 1, 1992, the soil was still in the water and still had the potential for being dispersed in to the waterway. No person had removed any of the soil, although the water had moved some of the soil. The top of the soil pile was lower on August 7, 1992 than it had been on June 12, 1992 due to water action and possibly due to the pier debris settling. It is not clear whether silt curtains extending to the waterway bottom had been installed as of December 1, 1992, but the testimony and the October 30, 1992 workplan suggest that this may not have occurred. Part of the reason for the delay in removing the soil was the length of time which it took for the City and the BNYDC to develop a workplan.

Discussion

The present proceeding concerns a summary abatement order which was issued under ECL Section 71-0301 and 6 NYCRR Part 620. ECL Section 71-0301 provides, in pertinent part, that:

Notwithstanding any inconsistent provisions of law, whenever the commissioner finds, after investigation, that any person is causing, engaging in or maintaining a condition or activity which, in his judgement, presents an imminent danger to the health or welfare of the people of the state or results in or is likely to result in irreversible or irreparable damage to natural resources, and relates to the prevention and abatement powers of the commissioner and it therefore appears to be prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, the commissioner may, without prior hearing, order such person by notice, in writing wherever practicable or in such other form as in the commissioner's judgement will reasonably notify such person whose practices are intended to be proscribed, to discontinue, abate or alleviate such condition or activity, and thereupon such person shall immediately discontinue, abate or alleviate such condition or activity. As promptly as possible thereafter, not to exceed fifteen days, the commissioner shall provide the person an opportunity to be heard and to present proof that such condition or activity does not violate the provisions of this section.

The Department's summary abatement powers differ from its other enforcement powers in that summary abatement orders are intended for situations in which the environmental threat is so immediate that it would be harmful to wait until a hearing could be held before taking action to correct the conditions.

In the present case, there has been actual damage to natural resources and there is also the potential for additional damage. No party contested this in the hearing on the Summary Abatement Order. Respondents U.S. Coastline, Inc., Michael Murphy and Robert Murphy did, however, question the urgency of the condition in view of the length of time which the Department Staff was willing to allow for the negotiations regarding the workplan and the stipulation among the Department, the City and the BNYDC. Although the July 16, 1992 Summary Abatement Order required that certain actions be taken immediately or within 5, 30 or 35 days of the date of the Order, at least some of the work was not done within that timetable and the Department Staff either requested or agreed to adjournments of the hearing and extensions of the discussion regarding the workplan.

The length of time which passed between the issuance of the Summary Abatement Order and the date of the hearing, together with the Department Staff's willingness to allow for further negotiation while the soil remained in the water, indicate that it would not have been prejudicial to provide an opportunity for a hearing prior to ordering the corrective actions directed by the Summary Abatement Order. The conditions therefore do not fall within the provisions of ECL Section 71-0301. They do, however, require remediation. This can be pursued under the Department's enforcement powers and the procedures contained in 6 NYCRR Part 622 (Uniform Enforcement Hearing Procedures).

With regard to the stipulation, the terms of a summary abatement order may only be modified by the Commissioner unless such authority is otherwise delegated (see In the Matter of the Summary Abatement Order issued to Allegro Oil and Gas, Inc., Order, October 20, 1988). There is no indication that such a delegation exists in the present case. The stipulation does not modify or replace the Summary Abatement Order, which Order would continue in effect until modified or revoked by the Commissioner or the courts.

Conclusions

It would not have been prejudicial to the interests of the people of the State of New York to delay, until an opportunity for hearing could have been provided, the actions specified in the Summary Abatement Order to alleviate conditions resulting from the collapse of Pier G.

Recommendation

I recommend that the Summary Abatement Order be revoked. I further recommend that the matter be remanded to the Department Staff for enforcement action pursuant to 6 NYCRR Part 622. If the Commissioner were to conclude that the conditions do come within the provisions authorizing summary abatement orders, I recommend that the Summary Abatement Order be revised to include new dates for completion of the required actions.

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